Natural School Of Law

Natural Law. The natural-law school of thought emphasizes that law should be based on a
universal moral order. Natural law was “discovered” by humans through the use of reason and by
choosing between that which is good and that which is evil.
Problem of Natural theory of law
1. One of the difficulties for natural law theory is that people have interpreted nature
differently? Should this be the case if as asserted by natural law theory, the moral law of
human nature is knowable by natural human reason?

2.How do we determine the essential or morally praiseworthy traits of human nature? Traditional
natural law theory has picked out very positive traits, such as “the desire to know the truth, to
choose the good, and to develop as healthy mature human beings”. But some philosophers, such
as Hobbes, have found human beings to be essentially selfish. It is questionable that behavior in
accordance with human nature is morally right and behavior not in accord with human nature is
morally wrong. For instance, if it turns out that human beings (at least the males) are naturally
aggressive, should we infer that war and fighting are morally right?

2. Even if we have certain natural propensities, are we justified in claiming that those
propensities or tendencies should be developed? On what grounds do we justify, for
example, that we ought to choose the good?

3. For Aquinas, the reason why nature had the order it did was because God had put it there.
Other thinkers, such as Aristotle, did not believe that this order was divinely inspired.
Does this alleged natural moral order require that we believe that there is a God that has
produced this natural moral order? Evolutionary theory has challenged much of the basis
of thinking that there is a moral natural order, since on evolutionary theory species has
developed they way they have out of survival needs.

5 It is doubtful that one can infer moral principles forbidding adultery, rape, homosexuality, and
so forth, either from biological facts about human nature or from facts about the inherent nature
of Homo sapiens.
6. Critics of natural law theory say that it is doubtful, however, that the inherent nature of Homo
sapiens establishes laws of behavior for human beings in the same way as it may establish laws
of behavior for cats, lions, and polar bears. It is especially difficult because so much of human
behavior is shaped by the environment, that is, by deliberate and nondeliberate conditioning,
training, and education.

Pure Theory of Law

In Pure Theory of Law, Kelsen sort to establish that law is a pure or clean concept. As a result,
study of law should be devoid of any external infiltrations-no moral, psychological, sociological,
political, axiological or metaphysical elements should be introduced into the study of law. And
for any statement to be regarded as law it must be traceable to a non-law created entity, the
grundnome.
CRITICISMS OF THE THEORY
Kelsen’s assertion that all norms except Grundnorm are not pure has no legal basis, because if
Grundnorm itself is a hypothesis or fiction, then other norms having their basis on Grundnorm
have no ground.

Positivist school of law

Positive law is law made by man. It is a system of rules established by the governmental power
of a state. Positive law can be based upon natural law, but generally this view of law is opposed
to the classical understanding of natural law.

Legal positivism is the view that law is fully defined by its existence as man-made law. Function
of positive law is to define the natural law and make it explicit; to make it effective thru
sanctions.
The positivist approach has a recurring problem of the separation of law from moral law and
natural law.
The positivists criticize the idea that natural laws are inherent in the concept of law. John Austin
advocated the separation of law and morals.

“ With the goodness or badness of law as tried by the test of utility or by any of the various tests
which divide the opinions of mankind it has no immediate concern.”
John Austin emphasized that law is not directly related or has no “immediate concern” to natural
or moral law. Law is not necessarily a moral concept and moral considerations do not necessarily
precede law. Whatever their relation may be is only mere accidental and not immediate.

In the legal positivists point of view, the body of legal rules should exist without conscious
regard for the norms of morality, although the latter’s influence are not completely denied. There
are legal rules that do not measure up to moral law but do not cease to be legal rules.

Another problem of the positivist approach with regard to the nature of law is that it deals with
the empirical sphere of reality ( that is ) rather than the transcendental sphere of the ideal (the
ought).Legal positivists do not believe in natural law in the legal ordering of society because
natural law is not common to everybody. There are conflicting precepts of natural law making it
difficult to establish which is right and which is wrong. It is better if the concept of law is free
from metaphysical speculation.

The Historical theory of law

The Historical theory of law argues and states that law should be a product of the custom of the
society. As we can simply derive from the meaning of the word ‘history’ – the Historical school
of jurisprudence is of the opinion that law should be a restatement of the history of the people.
Criticism
It’s criticized for being overly traditionalistic, often neglecting justice and victims’ rights in a
rapidly changing world. Finding and applying the concept of Volksgeist, or the spirit of the
people, is challenging both in theory and practice, making consistent application difficult.

Sociological School Of Law

The Sociological School of Law rejects law as an abstract, idealistic concept and
sees it as an evolving social institution which reacts and adjusts to changes in
the social circumstances. The school deals with the relation between law and
society.

It was founded by Eugene Ehrlich and enjoyed contributions from Roscoe Pound.
Utilitarian School
Utilitarianism is a form of consequentialism because it rests on the idea that it is the
consequences or results of actions, laws, policies, etc. that determine whether they are good or
bad, right or wrong. In general, whatever is being evaluated, we ought to choose the one that will
produce the best overall results. By Jeremy Bentham.
Criticisms of Utilitarianism
That fact does not allow for a consistent quantifying process. In addition, all ethical systems
stemming from consequentialism (the belief that actions are judged on the basis of their
consequences) are limited by the ability to guess at the future consequences of present actions.

Realist School
The Realist School of Jurisprudence combines Analytical Positivism and sociological ideologies.
According to the Realist school of jurisprudence: Law is defined in terms of judicial decisions,
not as a set of rules. Law originates from judges, so the law is determined by what the courts do,
not what they say.

By Oliver Wendell Holmes

Criticism – Realist Theory of Law

The argument is not wholly correct because it places the law-making power in the hand of the
judiciary, thereby usurping the role of the legislative arm. Whereas, the primary role of a judge is
to interpret law.